Last week on Thursday we held the second virtual edition of our COMMUNIA Salon. This edition focussed on the role of flexible exceptions in the context of Article 17 of the Copyright in the Digital Single Market Directive and the role that a broad interpretation of the concept of pastiche can play in preserving users’ freedom of creative expression. If you have missed the event you can watch a recording of the presentations and the subsequent discussion here:
The salon was kicked off by Teresa Nobre who discussed the importance of flexible copyright exceptions and highlighted the recent developments in the jurisprudence of the CJEU that has gradually started to recognise exceptions as expressions of certain fundamental rights. In the following presentation Paul Keller discussed the tension between mandatory exceptions and de-facto mandatory filters in Article 17 and highlighted that the provisions dealing with exceptions remain at the center of the discussion in the Commission’s stakeholder dialogue on the implementation of Article 17.
In the second part of the event Prof. Martin Senftleben talked about Article 17, Pastiche and Money for Creators. As part of his presentation Prof. Senftleben reminded the audience about the original objective of Article 17 to make large online platforms pay for so-called “user generated content” in order to improve the income position of creators and other rightholders. According to Prof. Senftleben, the licensing based approach introduced by Article 17 will fail to achieve this objective since it inherently favours large rightholders who have the means to negotiate with large platforms. Article 17 as such does not ensure that individual creators benefit from any additional revenues secured by creative industry intermediaries.
To fix this and to ensure that users will continue to be free to upload works that incorporate existing works Prof. Senftleben proposed a broad, remunerated use privilege based on the exception for pastiche found in Article 17(7)(b) of the directive. Similarly to the existing model of private copying levies, transformative uses that fail to meet the requirements of the quotation or parody exceptions (such as background music in home videos) would be allowed by a remunerated pastiche exception. In Prof. Senftleben’s proposal the remuneration paid by the platforms for such uses would be paid directly to individual creators via collective management organisations.
Contrasted with the implementation proposals for Article 17 that we have seen so far, Prof. Senftleben’s proposal stands out in attempting to reconcile the interests of individual creators and users with the realities created by Article 17. Watch the video recording of the entire presentation and the subsequent discussion about the feasibility of this approach.